What Members of Congress Say About the Supreme Court and Why It Matters

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process – what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers – evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A process-focused critique of Gorsuch’s jurisprudence could have, for example, challenged his claims that textualism necessarily constrains judges and is required by the separation of powers, and it could have given lie to the claims that judging is no more than mechanically “following the law.” Such a critique need not have ignored the real-world implications of Gorsuch’s jurisprudence and indeed could have demonstrated how his approach can undermine congressional efforts to protect ordinary people. Process language would also have allowed Democrats to use discussions of iconic cases like Brown v. Board of Education to demonstrate their commitment to the Constitution’s promises of equality and liberty and their expectation that any Supreme Court Justice embrace those principles. In future, Democrats should use confirmation hearings not only as an opportunity to question the nominee, but also as a chance to articulate their constitutional vision to the American people. The political right has shown how powerful this strategy can be. The political left should do the same.

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